Delhi High Court
M/S/ Rana Chairs vs Director General (Town Planning) ... on 5 October, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1090/2013
M/S/ RANA CHAIRS ..... Plaintiff
Through: Mr Dharmendra Sharma, Advocate.
versus
DIRECTOR GENERAL (TOWN PLANNING) KOLKATTA
MUNICIPAL CORPORATION & ANR. ..... Defendants
Through: Mr Sujoy Mondal, Advocate for D-1.
% Date of Decision: 05thOctober, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
I.A. 4957/2016
Keeping in view the averments in the application, the delay in filing
the application under Order 9 Rule 13 CPC is condoned.
Accordingly, the application stands disposed of.
I.A. 4956/2016
1. Present application has been filed by the applicants/defendants under
Order 9 Rule 13 CPC, for setting aside ex-parte decree dated 17th
September, 2015.
2. Learned counsel for the applicants/defendant states that after receiving
the summons in the plaintiff's suit on 11th December, 2013, the law
department of the defendant contacted the local advocate who assured the
applicants/defendants that there was no merit in the matter and this Court
would dismiss the suit due to lack of territorial jurisdiction. He states that
relying on the said legal advise, the defendants did not enter appearance in
the present suit.
3. He states that thereafter the applicants/defendants received notice on
14th March, 2017 of a letter dated 8thMarch 2017, which contained papers
pertaining to execution petition being EC 5 of 2017 filed by the
petitioners/respondents in the High Court of Kolkata for execution of decree
dated 17th September, 2015.
4. Learned counsel for the applicants/defendants states that after
receiving the notice for the execution petition the applicants/defendants
contacted and consulted their present advocate on 4th April, 2017 and filed
the instant application on 13th April 2017.
5. Learned counsel for the applicants/defendants submits that in the
present case, the defendants were prevented by sufficient cause from
appearing in the present suit. In support of his submission the learned
counsel for the applicants/defendants relies on the judgment of the Hon'ble
Supreme Court in G.P.Srivastava v. R.K.Raizadaand Others, (2000) 3 SCC
54. The relevant portion of the said judgment is reproduced herein below:-
"7. Under order 9 Rule 13 CPC an ex parte decree passed against
a defendant can be set aside upon satisfaction of the Court that
either the summons were not duly served upon the defendant or he
was prevented by any "sufficient cause" from appearingwhen the
suit was called on for hearing. Unless "sufficient cause" is shown
for non-appearance of the defendant in the case on the date of
hearing, the court has no power to set aside an ex parte decree. The
words "was prevented by any sufficient cause from appearing"
must be liberally construed to enable the court to do complete
justice between the parties particularly when no negligence or
inaction is imputable to the erring party. Sufficient cause for the
purpose of Order 9 Rule 13 has to be construed as an elastic
expression for which no hard and fast guidelines can be prescribed.
The courts have a wide discretion in deciding the sufficient cause
keeping in view the peculiar fact and circumstances of each case.
The "sufficient cause" for non-appearance refers to the date on
which the absence was made a ground for proceeding ex parte and
cannot be stretched to rely upon other circumstances anterior in
time. If "sufficient cause" is made out for non-appearance of the
defendant on the date fixed for hearing when ex parte proceedings
were initiated against him, he cannot be penalized for his previous
negligence which had been overlooked and thereby condoned
earlier......"
6. The plaintiff in his reply dated 17th August, 2017 stated that the
application is barred under Section 5 of the Limitation Act, 1963 as the
limitation for filing an application under Order 9 Rule 13 is 30 days. He
states that the defendants were served summons for the suit on 11 th
December, 2013 and the defendants chose not to appear believing that the
plaintiff's suit would be dismissed. He also states that the application filed
by the applicants/defendants shows deliberate and mala fide intent of
applicants/defendants to delay the payment due to the plaintiff/respondent.
7. Having heard learned counsel for the parties, this Court is of the view
that the applicant/defendants had knowledge of the plaintiff's suit and
willingly chose not to participate in the court proceedings assuming that the
suit would be dismissed on the grounds of territorial jurisdiction.
8. The Supreme Court in Parimal v. Veena Alias Bharti, (2011) 3 SCC
545 has held that:-
"13. Sufficient cause" is an expression which has been used in
a large number of statues. The meaning of the word "sufficient"
is "adequate" or "enough", inasmuch as may be necessary to
answer the purpose intended. Therefore, word "sufficient"
embraces no more than that which provides a platitude which
when the act done suffices to accomplish the purpose intended
in the facts and circumstances existing in a case and duly
examined from the viewpoint of a reasonable standard of a
cautious man. In this context, "sufficient cause" means that the
party had not acted in a negligent manner or there was a want
of bona fide on its part in view of the facts and circumstances of
a case or the party cannot be alleged to have been "not acting
diligently" or "remaining inactive"......
xxxx xxxx xxxx xxxx
16. In order to determine the application under Order 9
Rule 13 CPC, the test that has to be applied is whether the
defendant honestly and sincerely intended to remain present
when the suit was called on for hearing and did his best to do
so. Sufficient cause is thus the cause for which the defendant
could not be blamed for his absence. Therefore, the applicant
must approach the court with a reasonable defence. Sufficient
cause is a question of fact and the court has to exercise its
discretion in the varied and special circumstances in the case at
hand. There cannot be a straitjacket formula of universal
application."
9. Keeping in view the above, this Court is of the view that the
applicants/defendants have failed to show 'sufficient cause' in the present
case to set aside the ex-parte decree dated 17th September, 2015. The
explanation offered in the present application by the applicants/defendants is
meritless. In the opinion of this Court, the applicants/defendants in the
present case have been negligent and they could not have presumed that the
plaintiff's suit would be dismissed by this Court on account of lack of
territorial jurisdiction. In the opinion of this Court, if the excuse of the
applicants/defendants for restoration is accepted, then no party will ever
appear in the Court after receipt of summons.
10. Consequently, the present applications are dismissed on the ground of
limitation as well as being without any merit.
MANMOHAN, J
OCTOBER 05, 2018
j/sp
